What will replace the Administrative Appeals Tribunal (AAT)?

On 16 December 2022, Attorney-General Mark Dreyfus announced the federal government’s plan to abolish the Administrative Appeals Tribunal (AAT) and replace it with a new administrative review body. The reasons for the proposed abolition were that the AAT had become too politicised through politically motivated appointments of AAT members, which rendered the tribunal dysfunctional.

A version of this article was first published by The DCN in February 2023.

While the Attorney-General had discussed the proposed abolition of the AAT following the federal election in early 2022, the actual announcement came as a surprise, especially as it was so late in the year. It caused significant concerns for those who use the AAT as an important means of merits review of decisions of many of the federal government’s regulatory agencies.

Background

The AAT was created as part of several significant legal reforms of the (then) Whitlam government. The reforms included the Family Law Act 1975 and the Administrative Decisions (Judicial Review) Act 1977. The purpose of the AAT was to establish a body to undertake merits review for a series of decisions of government agencies.

The significance of a merits review in such decisions is that the review is not confined to legal issues. The AAT makes decisions afresh based on the merits of a particular decision. While that often effectively included a review of the previous decision, it also allowed for other material to be included and different and preferable decisions to be made on the issue before the AAT.

The AAT’s merit review of government decisions considers whether, on the facts presented to the AAT, the correct or preferable decision was made in respect of the applicable law(s) and government procedures. Hearings are conducted “de novo” and the AAT is not restricted to the material before the original decision maker in making its decision if new evidence has arisen after the original decision was made.

Section 43(1) of the Administrative Appeals Tribunal Act 1975 states that the AAT may exercise all the powers and discretions of the original decision maker. They may also stand in the shoes of the original decision maker and reconsider the decision using information brought before it or available to it.

Areas of jurisdiction

The jurisdiction of the AAT is very broad and includes decisions in several divisions, including the:

• Freedom of Information Division (FOI Division);
• General Division;
• Migration and Refugee Division;
• National Disability Insurance Scheme Division (NDIS Division);
• Security Division;
• Small Business Taxation Division;
• Social Services and Child Support Division;
• Taxation and Commercial Division; and
• Veterans’ Appeals Division.

The AAT is not necessarily the sole option for external review of the decisions of government and its officials. Decisions made by the AAT could be referred to the Federal Court and from there could be appealed to the High Court – if the High Court believed the issue warranted resolution at that level. The use of the AAT for the purposes of external review is not compulsory, and review could instead be referred directly to state Supreme Courts or the Federal Court.

How it works

The original intention of the AAT was to afford less-expensive opportunities to a wide group of persons affected by decisions of government officials to secure independent review of those decisions. There was no requirement for those appearing before the AAT to be lawyers and no obligation for parties to use lawyers in reviews before the AAT.

The AAT also has its own evidential and procedural rules which do not limit the types of evidence which come before the AAT. However, over time, the practice of those in certain divisions has tended to include the use of lawyers with barristers often retained to undertake advocacy before the AAT during the actual hearing, and to provide advice in the preparation of statements of facts, issues and contentions and witness statements.

Further, while no one decision of the AAT is technically binding in another AAT proceeding, a practice has developed where AAT hearings involve considering decisions made in other AAT cases on similar issues.

Customs and Trade, and Transport and Logistics industries perspective

From the perspective of the Customs and Trade, and Transport and Logistics industries, the AAT had become the source for several decisions affecting those in the industries, specifically decisions made under various provisions of the Customs Act 1901 and the Biosecurity Act 2015. The decisions affect importers, exporters and their service providers.

Andrew Hudson, Partner of Customs & Trade at Rigby Cooke Lawyers, has conducted reviews of decisions before the AAT, most of which were reviews of decisions of the Australian Border Force (ABF) (and its predecessor agencies) under the Customs Act 1901. The reviews included tariff classification and valuation of imported goods, decisions regarding the issue or review of tariff concession orders and the application of dumping and countervailing duties to certain goods.

Importantly for those in the Customs and Trade, and Transport and Logistics industries, reviews of decisions regarding the issue, suspension or revocation of customs brokers licences or licences to operate customs bonds or warehouses can come before the AAT. These are often decisions of which can affect the livelihoods or businesses of those who are affected.

In Andrew Hudson’s experience, he has seen no evidence of any dysfunction in the operation of the AAT in matters in which he has been involved. A number of those matters he has been involved in are resolved before any actual hearing based on the materials provided by the parties when they have had the opportunity to review the evidence on which the parties would be relying at a hearing. As a result, he and others in industry are eager to learn about the jurisdiction of the new administrative review body that will be established to replace the AAT, as well as the terms of the new review body’s operation.

Good to know

The federal government has not yet released details of the proposed new review body and is seeking submissions from parties as to the nature of that new review body. Given the significance of the AAT as a review body for those in industry, many will be looking very carefully at the terms of any new review body and will no doubt be making submissions on issues. These may include:

• The decisions that will go before the new review body. ­Will it include the current reviews that go before the AAT, or will it consider more or less of those decisions?
• How the administrative process will operate. Will there still be statement of facts, issues and contentions and witness statements as is currently the case, or will there be changes to that process?
• Whether there will be more focus on appropriate dispute resolution earlier by way of convening an earlier form of negotiation by mediation on the issues and outcomes.
• Whether there will be a specialist list created for customs and trade issues with appointed members to preside over such issues having had more direct expertise in such issues.
• How the process for appointing members to the review body will be undertaken. Will current members be immediately re-appointed, or will there be a new call for people wanting to be appointed as members?
• Whether there will be changes to the qualifications for those who will be appointed as members of the review body and a change to the appointment process to remove the perceived political bias in appointments. Who would be best placed to decide on appointments?
• The degree of resources to be allocated to the new review body, considering there have recently been significant delays in the commencement to the review process and the issue of decisions in several disputes.
• What will be the effect on the jurisprudence comprised by the decisions of the AAT.
• The extent to which industry is engaged with the development of the new review body.
• Whether a separate division of the review body will be established with specific jurisdiction over customs and trade disputes with associated specific expertise. Presently, AAT customs and trade cases are spread amongst various other divisions.

In relation to the question of engagement, we are hopeful there will be several members of the Customs & Trade, and Transport industries who seize the important opportunity to help shape the form and operation of the new review body. In this instance, it is important for members of the aforementioned industries to engage with the process of the creation of the new review body.

Andrew Hudson and the Customs & Trade team look forward to engaging with industry on these and further developments in the creation of the new review body throughout 2023. There is an element of concern that such fundamental change to the review rights of those in the industries is happening with the existing level of uncertainty on the reform process.

Contact us

To discuss issues relating to Customs and Trade legislation or assistance in addressing any current trade or transport issues your business is facing, please contact our Customs & Trade team.